Drone Wars appeared in court yesterday to appeal the refusal of the Ministry of Defence (MoD) to give basic details of UK Reaper operations outside of its campaign against ISIS in Iraq and Syria. Judgement in the case is due to be given in around six weeks’ time.
In January 2020 the MoD refused to answer a Freedom of Information (FoI) request from Drone Wars UK seeking the number of UK Reaper flights that had taken place outside of Operation Shader during 2019 and their location. The request was refused both on national security and international relations grounds. Subsequently, Ministers refused to answer questions both in the House of Commons and the House of Lords about the sorties, claiming that Reaper was an ‘intelligence, surveillance and reconnaissance platform’ and that Ministers “do not comment on intelligence matters.”
Labour MP Clive Lewis wrote directly to the Secretary of State, Ben Wallace, about the matter and was told in response:
“REAPER is not conducting strike operations outside those theatres for which Parliament has approved the deployment of UK Armed Forces. The vast majority of REAPER missions are reconnaissance and surveillance operations and as I am sure you can understand, to reveal where it is conducting those missions would provide valuable information to our adversaries.”
Clive Lewis and crossbench Peer, Baroness Viviane Stern, member of the All Party Parliamentary Group on Drones and Modern Conflict submitted written statements to the Tribunal urging the need for transparency. Mr Lewis argued that the refusal to answer questions about the deployment of Reaper is “a serious backward step in terms of transparency and accountability.”
Baroness Stern stated:
“Despite repeated attempts by myself and colleagues to attain even the most basic information about the UK’s drone deployments, policy, and commitments, Parliament has not been provided with the accurate and timely information needed to meaningfully carry out its constitutional scrutiny role. Whilst certain details must be kept secret in order to ensure operational and national security, the current trend of withholding information about the use of drones purely because it is seen as an “intelligence” asset, as well as withholding vital information on the UK’s growing military capabilities and commitments is deeply concerning and unjustified.”
In court, the MoD argued against the release of the information on two grounds. Firstly, that the information was exempt from release under Section 26 of the Freedom of Information Act, arguing that the information would prejudice the capability, effectiveness or security of relevant forces. Secondly, it argued that release of the information was exempt under Section 27 of the Act, in that its release would prejudice relations between the United Kingdom and any other State and/or the interests of the United Kingdom abroad.
In pre-hearing papers and in court itself the MoD argued only in general terms about the harm that could be caused, stating that the detail of how the information was damaging could only be disclosed in a closed session.
Significantly, however, the MoD also argued in pre-hearing papers that it needed to be able to deploy Reaper drones in the future with what it euphemistically called “a degree of ambiguity”:
“While Operation Shader is a counter-Daesh operation, other and/or future operations may depend on a greater degree of public ambiguity as to the employment of Reaper in order to be successful. It is therefore important to retain a degree of ambiguity regarding the full extent of RPAS operations now in order to maintain this flexibility in the future.”
Drone Wars argued that the information requested – a single figure of the number of sorties undertaken outside of Operation Shader and their broad, geographic location (i.e. ‘The Middle East’) – was not capable of causing the prejudice alleged. In particular it pointed to the fact that the MoD released much more detailed information about Reaper sorties within Operations Shader without it being in any way prejudicial to armed forces personnel or UK interests.
Both of the exemptions claimed by the MoD are subject to a ‘public interest test’. That is, any refusal under the grounds cited has to take into account the public interest in favour of release or not of the information. Drone Wars argues that there is significant weight to the public interest in disclosure.
Chris Cole said in court
“The public interest in disclosing the information requested is very significant as it will mean that there is accountability to parliament and the public in regard to the military deployment of Reaper drones. Without this information being released we are all completely in the dark about whether or not such a deployment is taking place. I submit that its hugely important – indeed a characteristic of democracy – that there is proper parliamentary and public oversight over the military and military deployments. I would argue, particularly with what we are seeing in Europe at this time, that we need to draw a clear distinction between those who deploy military force with public and parliamentary support, oversight and control, and those who don’t. The MoD has argued in this case that it wants to be able to deploy Reaper drones in the future with what it euphemistically calls “a degree of ambiguity”. I very much fear that if this appeal is denied, we may never again know when and where British Reaper drones are deployed.
The hearing twice went into closed session during which time Drone Wars was excluded from the court. The first time was for the court to question the MoD witness in the case, Group Captain Beldon, and secondly for the MoD to make ‘closed’ submissions about why the information should not be released. Drone Wars submitted a number of questions to the court to put to the MoD during the closed session and we received a gist or summary of the responses (see below).
In its submissions made in open session as to why the information should not be disclosed, the MoD argued that there was little public interest in releasing the information requested as it was limited information and it was not actually capable of answering questions that campaigners and parliamentarians have raised with regard to the legality and ethics of Reaper operations.
In court, Chris Cole argued that this was sleight of hand. Parliamentarians including Sir Ed Davey, leader of the Liberal Democrats, and Baroness Bennett, former leader of the Green Party had sought basic but important information about deployment of drones
“To suggest that because the particular piece of information cannot in and of itself answer broader questions does not mean there is not great public interest in that it allows parliamentary scrutiny by acknowledging the fact of the deployment.
In her important submission, Baroness Stern, Co-Chair of the All Parliamentary Party group on drones and modern conflict argues that “Transparency is instrumental for Parliament to carry out its essential role of scrutinise the work of the government.” She went on:
“Not only does transparency enable Parliament to scrutinise government action, but it allows the general population to observe action government takes in their name, and to scrutinise and hold to account said action. As such, transparency contributes to good governance, and public legitimacy and confidence in the government.”
It wasn’t very long ago that the Chilcot inquiry made this very point too. Without proper outside scrutiny of decisions, it’s all too easy to fall into group think. The best way to overcome that is to accept that reasonable challenge and scrutiny is legitimate. Such challenge and scrutiny of decisions simply cannot happen without at least some basic transparency.
Papers from the Information Tribunal (EA/2021/0035)